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Friday, December 05, 2008

Nothing To Cheer About

CNN has a video story up about high school cheerleaders who were kicked off the team, after it was revealed they had texted nude pictures of themselves to their boyfriends. Everyone CNN talked to was in 100% righteous fury mode, absolutely convinced the school did the right thing, lamenting how today's girls are sluts, and slamming the parents for trying to get their daughter's reinstated.

Can I try and offer a dissenting opinion here?* If you watch the piece, there seem to be two conflicting narratives being forwarded about the girls. The first is that they are victims of over-sexed boyfriends who "pressured" them into sending the photos. The second is that the girls are trashy whores, presumably because they sent the pictures even though they weren't so "pressured".

Not only are these claims inconsistent with each other, neither warrants the response given. If the young women are really victims here, then I'm confused why we should be punishing them, rather than turning our attention to the putative victimizers. And if there was no pressure, but this was totally voluntary and consensual activity between girlfriend and boyfriend, well, guess what? Having a sexualized relationship does not make one a slut. I'm uncomfortable with the idea that the school system should be punishing private, consensual sexual activity between students off of school property. I also have trouble believing that we'd come down this hard if it was known that the cheerleaders were having sex with their boyfriends, even though that is theoretically "worse" than exchanging nude photos with them. And I categorically refuse to buy into this awful social fiction whereby any sort of teenage sexual activity is met with apocalyptic sermonizing on the evils of the younger generation.

The only vaguely compelling argument I've heard is that the atmosphere of cheerleading caused the girls to view themselves as "performers", and assign their own value solely in terms of the reaction they can elicit from their "performance". The pictures are supposedly a product of this mentality, and thus they are being removed from the team, not as a punitive measure, but because it is leading to a damaging conceptualization of self-worth.

I think that's at least a little better, in that it doesn't berate the women and at least nominally ties the school's action to a legitimate educational purpose. But my feeling is that it is both insufficient and (more importantly) pre-textual. Insufficient, in that I don't think there is enough evidence to show the causal between cheering and nude photos (and there are many far simpler causal chains that could explain why a young woman might reveal her naked body to her boyfriend -- starting with "partner pressure" and ending with "we're in a relationship, part of which involves sexual expression!"). Pre-textual, in that the heaviest theme extant here is a feeling of moral superiority combined with heavy doses of slut-shaming. If we really were looking after the well-being of these young women, we wouldn't be so insistently screaming "WHORE!"

There are many things that can go wrong with teenage sexual exploration. And I'll concede that the fungibility of digital photos raises special concerns, given that the women may not have been aware of the risk that these pictures would get out into the public arena. But the mere fact that teenagers are engaging in sexual activity, absent anything else, is not something to get the vapors over. Aside from how hypocritical it is of, well, virtually all of us, if there is one thing this case is demonstrating, it's that the guardians of sexual morality enforce their code virtually exclusively through demeaning young women. And that will probably be more damaging than anything else.

* A caveat: I vaguely recall reading a similar story to this, which also alleged these girls were basically school terrors, openly flouting the authority of the teachers and administration, considering themselves above all rules and restraints due to their status. If this is that case, then obviously none of the above applies. I'm operating off the assumption that the nude pictures are the sole reason for punishing these young women.

14 comments:

I also have trouble believing that we'd come down this hard if it was known that the cheerleaders were having sex with their boyfriends, even though that is theoretically "worse" than exchanging nude photos with them.

Perhaps theoretically, but not legally -- dissemination of child pornography is a crime. It's legitimate for students to lose extracurricular privileges if they've pretty clearly committed a crime, even if they're not prosecuted for it. However, by being in possession of child pornography, the boyfriends also have committed a crime and kicked out of their extracurrics as well. Otherwise this is pretty clear "shame the whore!" stuff.

I knew you were going to bring up the child porn angle -- I almost wrote something about it. Short answer: The use of child pornography laws to punish teenagers voluntary sending and receiving pictures of themselves to their partners is such an abuse of the law that I'd rather just ignore it (even though I know it will not be ignored).

I vaguely recall reading a similar story to this, which also alleged these girls were basically school terrors, openly flouting the authority of the teachers and administration, considering themselves above all rules and restraints due to their status. If this is that case, then obviously none of the above applies. I'm operating off the assumption that the nude pictures are the sole reason for punishing these young women.

Even if it were the case that these girls were terrors of the school i cant see how punishing them using the images as a pretext is justified. If the photos are not something we should punish over in general it is not correct to use them as a base for the punishment. punish them for the other stuff if it deserved but dont use the cloak of some moral outrage over teen sexuality to do it.

I agree that using child porn laws to criminalize most teen relationships is unjust and simple possession in those cases is also unjust. however if the boyfriends are pressuring these girls and then disseminating the photos i think they have the requisite mens rea the laws were created to address. Punish them as they are purposefully exploiting the girls.

In general i agree with pg that If the girls get punished the boys should too. two to tango and all that...

The use of child pornography laws to punish teenagers voluntary sending and receiving pictures of themselves to their partners is such an abuse of the law that I'd rather just ignore it (even though I know it will not be ignored).

I agree that using child porn laws to criminalize most teen relationships is unjust

1) The law doesn't criminalize the relationship; it criminalizes the dissemination and possession of sexual images of the people in the relationship. As I noted in my link, we have strict liability laws for child pornography dissemination and possession, and I see no good reason to exempt minors from the reach of those laws. If one of the a 16-year-old cheerleader's boyfriend is 18, he is an adult liable for possession. She should be aware of the fact that as adult as she may think herself, she's legally a minor and images of her nude and/or performing sexual acts are contraband. If this is unjust, change the law so that 16-year-olds' nude pictures aren't classified as porn, but don't make exceptions in how the law is applied.

I'm frankly confused as to why David wants a specific carveout for trading pictures with one's sexual partner. As I recall high school, the partner of today is the enemy of tomorrow.

The law doesn't criminalize the relationship; it criminalizes the dissemination and possession of sexual images of the people in the relationship.

You seem to have a strange definition of "dissemination." If sending a picture of yourself to your boyfriend constitutes "dissemination" into the public sphere, well, then we've gone to a whole new level of puritanism in this country.

Yes, they are -- on which part of the Congressional Record do you base your assertion to the contrary? They're intended to keep ANYONE from seeing photos and video of 16 year olds nude.

Romeo and Juliet laws recognize that if two 15-year-olds have sex, it's less problematic than a 25-year-old having sex with a 15-year-old.

Pornography is different because it creates a record that then can go further along. For example, if the cheerleader decides to upload her nude picture to an amateur porn site, she's going to make a criminal of every person who downloads it -- even if that person has no reason to know that it's a minor in the images, and even if that person is a minor himself.

If we didn't have strict liability for child pornography generally, I'd be inclined to agree with you. Given that we do have laws that will make every person who sees the cheerleader's picture into a sex offender, however, I think the burden of the laws should fall on the creators and distributors of child pornography -- even if they are minors -- as well as on the unsuspecting possessors thereof.

Anonymous,

Who said anything about the "public sphere"? It's not my definition, it's the federal law's. If you have a problem with it, take it up with Congress.

In what way does "sending a [nude] picture of yourself to your boyfriend" not fit in "any person who knowingly transports or ships in interstate or foreign commerce by any means including by computer or mails, any visual depiction ... of a minor engaging in sexually explicit conduct"? I suppose you can try to argue that the pictures were not at all pornographic, but I doubt you'll get far with that unless they were some sort of Annie-Leibowitz-photographing-Miley-Cyrus-in-a-bedsheet-for-Vogue thing.

If you actually dug into the congressional record before doing your blogging, you're more of a bamf than I thought, but it's not exactly a reasonable standard to hold the rest of us to.

I think that -- just as a 25 year old having sex with a 15 year old is more problematic than 15/15, so it is with seeing a 15 year old nude. I'm going to go out on a limb here and say that the congressional record will contain a lot of yelling about child predators, but very little about teenage sexual exploration.

I do agree with you that the fungibility of photographs makes them somewhat more dangerous, but I think that if the photos go beyond the intended recipient (because the boyfriend is an asshole), tort law is the better response (also, I think then it better fits into the overall statutory purpose of protecting minors from exploitation). Strict liability in criminal matters makes me uncomfortable to begin with, and this situation isn't helping matters.

If you're going to claim that the intent of Congress was contrary to the law they wrote -- which does not base criminal liability on the age of the person creating, possessing or distributing the pornography, only on the age of the person depicted in it -- it's reasonable for you to look for someplace where Congress said they only meant for adults to be charged under the law.

If Congress didn't intend for minors to be charged, it's a pretty easy fix to make: simply add a definition of "person" that excludes "minors." I wish you luck in getting such a change made, but I suspect you'll find that Congress will be say that even minors close in age are entirely capable of sexually exploiting one another.

Which, given Fitzgerald v. Barnstable School Committee seems to be very much the case. Eight year old boys are "sexually exploring" five year old girls. I don't think eight year old boys need to be criminally prosecuted, but penalizing them in school strikes me as wholly appropriate.

I'm not quite clear on how you think the tort mechanism would work. The photos can go beyond the boyfriend even without his being a deliberate asshole -- he can simply be incautious, e.g. by failing to encrypt the photos and thereby making them potentially accessible to other users of his device, people who steal it, hackers, et al. Are we expecting the average person to know how to encrypt effectively? (I could only Google-guess at how to encrypt information on my computer; encryption on cellphone, iTouch etc. is waaay beyond me.)

If we're going to treat being seen naked while a minor as some horrible thing -- as it is not once one turns 18, since most of the amateur porn online doesn't come with consent forms indicating that everyone depicted therein was OK with this distribution -- then minors ought to be aware of it and adjust their behaviors accordingly. If we're actually not that bothered by it, then change the laws.

I don't think you've made any particular case, other than a completely literal reading of the statute, for punishing the girls themselves. You say they should be aware of all the laws involved, but do we SERIOUSLY expect teenagers to become legal experts about their relationships? I mean, on top of EVERYTHING ELSE teenagers have to deal with and learn, we're going to hold you accountable if you didn't stick your nose into statutes and discover totally counterintuitive results?

This is just a good example of the inability of legislative statute to capture the contours of justice. The issue isn't simply that the production of child pornography (a misnomer, by the way, when we're talking about 16-year-olds) should be legal for minors. A 17-year-old talking photos of his 10-year-old cousin should be prohibited. Part of this is about age discrepancy. But the appropriate difference in age is in some way a function of the age of the photographed individual. Moreover, the problem isn't actually age but emotional maturity which tends to overlap with age... but not exactly.

Maybe we can say that when there is no maturity difference at stake-- when a minor is taking photos of themselves-- we can permit it. But that would ignore potential for exploitation between the producer and the consumer, the producer's parents, etc.

So maybe if your spent a really long time on this you could get a statute that conformed to my idea of justice on these matters but really its probably easiest to have a broad law and count on prosecutorial discretion.

What is counterintuitive about the idea that possession and distribution of child porn is illegal? It's certainly no more counterintuitive than the concept of statutory rape itself. (Teen: "But I *wanted* to have sex with my 25-year-old boyfriend! I *love* him!" Law: "Yeah, he's still going to jail as a rapist.")

Jack,

Yes, and there's no prosecution in the cheerleader case -- there's just the school taking away extracurricular privileges. (Which, incidentally, the Supreme Court has said is totally OK to do even in the absence of an actual legal violation -- e.g., when a student refuses to take a drug test.)

i don't see how it's anyone's business but the cheerleaders and their boyfriends. since when do we allow schools to parent our children? and i'm sick of the words "slut" and "whore." they're only attributed to girls, and apparently sending nude pics to your boyfriend makes you a slut, which is bullshit.

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